United States v. Tagliaferro ( 2023 )

21-2223
United States v. Tagliaferro
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on
or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1
and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 2nd day of June, two thousand twenty-three.
PRESENT: Guido Calabresi,
Steven J. Menashi,
Eunice C. Lee,
Circuit Judges.
____________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-2223
SALVATORE TAGLIAFERRO, also known as Sealed Defendant 1,
Defendant-Appellant,
JOHN DEFALCO, also known as Sealed Defendant 2,
Defendant. *
____________________________________________
* The Clerk of Court is directed to amend the caption as set forth above.
For Appellee: JARROD L. SCHAEFFER, Assistant United
States Attorney (Thomas McKay and Won S.
Shin, Assistant United States Attorneys, on
the brief), for Damian Williams, United States
Attorney for the Southern District of New
York, New York, NY.
For Defendant-Appellant: JONATHAN SAVELLA (James R. Froccaro, Jr.,
on the brief), Law Office of James R. Froccaro,
Jr., Port Washington, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Crotty, J.).
Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Salvatore Tagliaferro was the president of his local
union of carpenters and joiners in Brooklyn. He arranged with another local union
president, John DeFalco, to admit unqualified workers to Tagliaferro’s union in
exchange for bribes. When the scheme was discovered, Tagliaferro was charged
with conspiracy to convert union property, conversion of union property, and
wire fraud, and a jury convicted him of those crimes. Tagliaferro now appeals his
conviction and sentence on three grounds. We presume the parties’ familiarity
with the facts and procedural history.
I
Just a few days before his jury trial was set to begin, Tagliaferro’s lead
counsel, Richard Rosenberg, suffered an accident in his home and sustained
serious injuries. At an emergency hearing the same day, Tagliaferro’s second
counsel, Michael Bachrach, explained to the district court that Rosenberg had been
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hospitalized and would not be ready for trial. Bachrach requested that the trial be
adjourned. After consulting the assignment committee, which schedules trials in
the Southern District of New York, the district court granted Bachrach’s request
and delayed the trial for two weeks. The district court made clear that the
adjournment was “contingent” on the understanding that either Rosenberg would
recover by the new trial date or Bachrach would be prepared to proceed to trial
himself and that the district court would “not entertain” any further
adjournments. App’x 28. About a week later, both Rosenberg and Bachrach sent
ex parte letters updating the district court on Rosenberg’s condition and requesting
that the trial be adjourned for another six weeks with the expectation that
Rosenberg would be available at that time. The district court denied that request,
and the case proceeded to trial with Bachrach as counsel. On appeal, Tagliaferro
contends that the district court’s decision to begin the trial without Rosenberg
abridged his Sixth Amendment right to be represented by his counsel of choice.
“Appellate review of a trial court’s refusal to delay trial is for abuse of
discretion.” United States v. Stringer, 730 F.3d 120, 127 (2d Cir. 2013). This standard
applies even when a litigant sought to adjourn trial on the ground that without the
adjournment he would be denied his counsel of choice. See United States v. Griffiths,
750 F.3d 237, 242 (2d Cir. 2014); United States v. Brumer, 528 F.3d 157, 161 (2d Cir.
2008).
The Sixth Amendment includes the “right of a defendant who does not
require appointed counsel to choose who will represent him.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006). But “[t]rial judges necessarily require a
great deal of latitude in scheduling trials” given the difficulties associated with
“assembling witnesses, lawyers, and jurors at the same place at the same time.”
Morris v. Slappy, 461 U.S. 1, 11 (1983). Thus, a court may deny a motion for a
continuance and require a defendant to “proceed to trial with counsel not of
defendant’s choosing,” Griffiths, 750 F.3d at 241, when the “needs of fairness” and
the “demands of [the court’s] calendar” outweigh the defendant’s preference,
Gonzalez-Lopez, 548 U.S. at 152.
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Assuming without deciding that Tagliaferro’s Sixth Amendment right to
counsel of choice was burdened, the district court articulated adequate reasons for
adjourning the trial for two weeks and no more. At the emergency hearing,
Bachrach represented that he was not requesting an “infinite delay” on account of
Rosenberg’s injury but suggested only a “couple-week delay.” App’x 21. That is
what the district court ordered, and it did so on the “condition” that Bachrach
“familiarize” himself with the case to be prepared for trial. Id. at 26. Bachrach did
not object; he said only “I understand.” Id.
Under these circumstances, we cannot say that the district court’s refusal to
delay any longer “cannot be located within the range of permissible decisions.” In
re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (quoting Zervos v. Verizon New York, Inc.,
252 F.3d 163, 169 (2d Cir. 2001)). Tagliaferro’s trial had already been delayed
almost a year on account of the Covid-19 pandemic, and two days prior to
Rosenberg’s accident Tagliaferro represented to the district court that he was eager
to go to trial. Moreover, it was not clear when Rosenberg would be capable of
conducting a trial, and the calendaring of the trial was not, at the time, in the sole
discretion of the district judge but had to be made in consultation with the
assignment committee due to the pandemic. Finally, the government noted at the
emergency hearing that delay would “impose a hardship” on its preparations as
well as “on the schedules of the witnesses which have been significantly
rearranged to accommodate for the trial.” App’x 23. Because the district court
reasonably considered the “needs of fairness” and the “demands of [its] calendar,”
Gonzalez-Lopez, 548 U.S. at 152, the district court’s decision was not an abuse of
discretion.
Tagliaferro offers several counterarguments, each of which lack merit. First,
he relies on our decision in Lainfiesta v. Artuz, 253 F.3d 151 (2d Cir. 2001), for the
proposition that he had a Sixth Amendment right to have two attorneys of choice
participate in his trial. But in that case, the trial judge provided no reasons
whatsoever as to why the second attorney should be excluded from participation.
By contrast, the district court here gave well-founded reasons why it would not
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adjourn the trial for more than two weeks. Tagliaferro’s reliance on Lainfiesta is
misplaced.
Second, Tagliaferro points to United States v. Parlato, 538 F. Supp. 3d 286(W.D.N.Y. 2021), in which the district court granted a continuance because the
defendant’s second counsel was unavailable. Tagliaferro’s reliance on Parlato is
also misplaced; while that case indicates that a grant of a continuance may be
permissible, it does not show that a denial is necessarily an abuse of discretion.
Indeed, the court in Parlato indicated that a denial would have been reasonable,
calling the question a “very close call.” Id. at 293.
Third, Tagliaferro insists that an adjournment until the date requested in the
ex parte letters would have been feasible. That may be correct, but the argument
misunderstands our standard of review on appeal. Even if a later date would have
been reasonable, that does not mean the date chosen by the district court was
unreasonable.
Fourth, Tagliaferro asserts that the summary denial of the request for further
adjournment in the ex parte letters was “unreasoning and arbitrary.” Appellant’s
Br. 20. But the district court had already provided reasons why no further
adjournment would be granted. At the emergency hearing, the district court stated
that the two-week adjournment was “contingent” on the understanding that either
Rosenberg would be recovered or Bachrach would be prepared. App’x 28-29. The
district court was not required to repeat itself when Rosenberg and Bachrach sent
their ex parte letters.
The district court did not abuse its discretion when it adjourned the trial for
two weeks and no more. For that reason, we affirm the judgment with respect to
the denial of Tagliaferro’s motion for further adjournment of the trial.
II
Tagliaferro was convicted of conversion of union property in violation of 29
U.S.C. § 501(c). He attacks that conviction on the ground that there was insufficient
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evidence to support it. “We review de novo challenges to the sufficiency of the
evidence, viewing the evidence in the light most favorable to the government,
drawing all inferences in the government’s favor and deferring to the jury’s
assessment of the witnesses’ credibility.” United States v. Zhong, 26 F.4th 536, 559
(2d Cir. 2022) (internal quotation marks omitted). The government’s evidence
must be considered “in its totality rather than in its parts,” and sufficient evidence
may be established “by circumstantial evidence alone.” United States v. Hawkins,
547 F.3d 66, 70-71 (2d Cir. 2008) (quoting United States v. Wexler, 522 F.3d 194, 207
(2d Cir. 2008)). Ultimately, “[a] defendant … cannot prevail on a sufficiency-of-
the-evidence challenge ‘if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Zhong, 26 F.4th at 560 (quoting
United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011)).
As relevant here, § 501(c) prohibits an officer of a labor organization from
“convert[ing]” any “property” of that organization. 29 U.S.C. § 501(c). The
government’s theory of this case is that Tagliaferro converted union member
identification cards (known as “books”) when he caused the books to be delivered
to unqualified workers who paid him bribes for admission to the union. The
parties do not dispute that the books are “property” within the meaning of
§ 501(c).
This case is controlled by our decision in United States v. Robinson, 512 F.2d
491 (2d Cir. 1975). That case concerned a similar bribery scheme, with the
important difference that the union officer filled out union member application
forms with false information. We said that it “cannot be disputed that the … forms
were converted by the defendants.” Id. at 494. Referencing our prior decision in
United States v. Silverman, 430 F.2d 106 (2d Cir. 1970) (Friendly, J.), we explained
that the defendant converted union property because he “utilized the property of
the union in a way which benefited [the defendant] and not the union,” Robinson,
512 F.2d at 495. The defendant’s action, we said, “was not authorized and
presumably the [union] and its membership would have objected had it been
made known.” Id. at 495-96.
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So too here. Tagliaferro converted the union books by causing the books to
be delivered to workers who were not qualified for membership in the union. 1
Had the union “been able to speak freely,” it would have “objected” to Tagliaferro
authorizing new union members on the basis of bribes rather than their
qualifications. Silverman, 430 F.2d at 127; see also Restatement (Second) of Torts
§ 235(1) (1965) (“[O]ne who makes an unauthorized delivery of a chattel to a
person not entitled to immediate possession is subject to liability for conversion to
another who is so entitled.”). Under the standard that Robinson set out, Tagliaferro
converted union property within the meaning of § 501(c).
Tagliaferro responds that we should construe our opinion in Robinson as the
Fourth Circuit did in United States v. Price, 788 F.2d 234 (4th Cir. 1986), vacated on
other grounds by McMahan v. United States, 483 U.S. 1015 (1987). Price read Robinson
as holding that the application forms were converted within the meaning of
§ 501(c) because the defendant “forged the forms in contravention of union
procedures to obtain moneys and in doing so converted them to his own use and
benefit.” Id. at 239. Thus, Tagliaferro says, he did not convert the union books
because he did not cause false information to be recorded.
Price is not the law of this circuit. That decision misread our opinion in
Robinson. We did not say in Robinson that the defendant converted the forms by
recording false information. We said that he converted the forms because he
“utilized the property of the union in a way which benefited [himself] and not the
union” and that his action was neither authorized by the union nor would have
1 Tagliaferro argues on appeal that the bribe-paying workers were qualified to be
admitted to the union. But the government presented evidence at trial—which we must
credit on a sufficiency-of-the-evidence challenge—that Tagliaferro’s union required an
applicant to have an offer of employment at a construction site prior to admission to the
union. While Tagliaferro may be correct that the workers had the skills to be carpenters,
he does not indicate that each had an offer of employment. Accordingly, we cannot say
that each bribe-paying applicant met all the requirements to be admitted to the union, so
we cannot infer that the union would have ratified Tagliaferro’s decision to admit them.
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been ratified later. Robinson, 512 F.2d at 495-96. Robinson raised the issue of false
information to address the defendant’s argument that the forms were not
sufficiently valuable to come within the ambit of the statute. We rejected that view,
holding that the statute “does not require that the property be of any particular
value.” Id. at 494. But even if the statute did so require, we continued, the forged
forms were valuable to the bribe payors, so any threshold would be met. Id. This
is all to say that in Robinson we said that the false information on the forms went
to § 501(c)’s element of property, not to the element of conversion. Only the latter is
relevant in this appeal. 2
Because Robinson held that using union property for personal benefit in a
way that was not authorized by the union constitutes conversion, we affirm
Tagliaferro’s conviction under § 501(c).
III
Finally, Tagliaferro argues that the district court erred when it ordered him
to forfeit $296,400—a figure that represented the entire proceeds of the scheme.
Because he and DeFalco split the proceeds equally, Tagliaferro says that he should
at most be required to forfeit half that figure: $148,200.
At oral argument, the government represented that Tagliaferro and DeFalco
are jointly and severally liable for the entire amount of $294,400, notwithstanding
the silence of DeFalco’s sentencing documents on that point. Oral Argument
Audio Recording at 31:04. The government further represented that it had
“already seized … [an] amount of money that was at Mr. DeFalco’s house that
2 In Robinson, we held that a defendant commits conversion when he uses property for a
non-union benefit without authorization. In determining whether a use was for union
benefit or with authorization, it would be relevant that the defendant entered false
information on union property. It also would be relevant that the defendant took bribes.
But those would be separate analyses from what we said about forgery in Robinson: that
the forms containing false information were sufficiently valuable that the forms
unquestionably constituted “property” within the meaning of § 501(c).
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satisfies more than half of the $296,400.” Id. at 32:21. That seized amount would,
the government said, be credited against the forfeiture order, leaving a forfeiture
balance of $146,665. Accordingly, the government represented that it would not
collect more than $146,665 from Tagliaferro. Id. at 32:43.
Because the government agreed that it will collect from Tagliaferro no more
than $146,665—which is less than the $148,200 Tagliaferro says would be a fair
forfeiture order—we conclude that any error by the district court was harmless.
* * *
We have considered Tagliaferro’s remaining arguments, which we conclude
are without merit. For the foregoing reasons, we affirm the judgment of the district
court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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